England’s Difficulty; Scotland’s Opportunity

Aidan O’Neill QC (Scot)

The result of Brexit referendum has revealed certain difficult truths about our nation.    England is an unhappy country.  The vote shows that the English are politically riven in terms of class, educational level, age, and (non-) metropolitan status.  It has revealed what was for so long obvious; that London is not in, or of, England.  It is an international(ist) city- state whose politics and economy and outlook are wholly different from the nation whose capital it nominally is.   And Scotland is another country; they do things differently there.

One thing is clear, however:  the result of the referendum has to be respected and acted upon by all our politicians.    That is what living in a democracy means.    So let us end this talk of a second Brexit referendum, or these calls on our MPs to refuse to implement the will of the people on the Brechtian grounds (in his poem Die Lösung) that “the people has forfeited the confidence of the government”.

Brecht’s poem concludes “ would it not be easier in that case for the government to dissolve the people and elect another?”.     But it seems to me that the result of the Brexit referendum has done exactly that.     It has revealed that there is not one demos, one people, within the United Kingdom.  There are instead peoples, demoi.  The British people has been dissolved.

The referendum has revealed radically different visions about our European future and place in the world between Scotland (and Northern Ireland) on the one hand, and England and Wales (excluding London) on the other.   Respecting democracy on this basis means respecting the decision of the people of England and Wales no longer to be citizens of a member State of the European Union.   Equally, however, respect for democracy means honouring the expressed wish of the people of Scotland (and Northern Ireland) to remain as full participant citizens in the supranational polity that is the EU.

So rather than arguing over when and how Article 50 TEU might be activated and by whom, or whether the two year clock ticking for exit can be stopped once started, we need as responsible citizens in a democracy to face up in good faith to what many of us regard as an appalling result, and coalesce around pressing for the quickest possible conclusion of the least worst option which still respects the actual referendum result.

The Brexit referendum has given no mandate or guidance as to what our future relationship might be with Europe.  The best and cleanest way to respect the referendum result (both in the fact that a majority voted to leave the EU but that a large minority voted for no change) would be to seek the minimum possible change compatible with the UK no longer being a Member State.  This minimal change means, in my view, joining Norway, Iceland and Liechtenstein in the European Economic Area (EEA).   The EEA Agreement was concluded in 1993 and looks remarkably like the Treaty of Rome prior to its amendment by the 1992 Maastricht Treaty, which first brought Tory Euro-scepticism to the fore.  Article 1 EEA states

  1. The aim of this Agreement of association is to promote a continuous and balanced strengthening of trade and economic relations between the Contracting Parties with equal conditions of competition, and the respect of the same rules, with a view to creating a homogeneous European Economic Area, hereinafter referred to as the EEA.
  2. In order to attain the objectives set out in paragraph 1, the association shall entail, in accordance with the provisions of this Agreement :

(a) the free movement of goods;

(b) the free movement of persons;

(c) the free movement of services;

(d) the free movement of capital;

(e) the setting up of a system ensuring that competition is not distorted and that the rules thereon are equally respected; as well as

(f) closer cooperation in other fields, such as research and development, the environment, education and social policy.

The case law of the Court of Justice on those provisions of the EU Treaties and secondary EU legislation which are “identical in substance to corresponding rules” of the EEA Agreement are binding, but only up until the date of the signature of the original EEA Agreement: Article 6 EEA.   What this means is that the acquis communautaire of the Court of Justice prior to the development of EU citizenship rights binds, but that the CJEU has no general continuing jurisdiction in relation to the interpretation of the EEA Agreement.

The EEA States have their own institutions to police the EEA Agreement: instead of the Commission there is the EFTA Surveillance Authority; instead of the CJEU there is the EFTA Court; and there is no role for the European Parliament.   There is provision for inter-governmental co-operation with the EU in the form of the EEA Council (which consists of the members of the EU Council and members of the European Commission, and of one member of the Government of each of the EEA States) and the EEA Joint Committee (which consist of representatives of the Contracting Parties and which take decisions by agreement between the EU, on the one hand, and the EEA States “speaking with one voice” on the other”).

England’s current difficulty is that it has no leader, a fundamentally divided populace and no mandate as to what any future relationship might be sought from the EU.   Given that membership of the EEA guarantees free movement of workers and the self-employed it might be thought to go against the anti-migration sentiments which appeared to have fuelled much of the vote in favour Brexit south of the Border.

Scotland, however, has a First Minister who is undoubtedly in charge of her party, a population which was remarkably united in the referendum, and a clear mandate from the referendum to the effect that Scotland wants to stay in the EU.

In the next three months or so while the Tory party seeks a new leader and England goes into meltdown in trying to gauge what so ailed the country, Nicola Sturgeon has an opportunity now to forge strong positive links across Europe and among the big players within the EU institutions to push the idea that what has happened is not that the UK as a whole has voted to leave the EU but that England and Wales voted to secede from the Union (both British and European) leaving Scotland (possibly in confederation with Northern Ireland) as the faithful remnant ready and able to maintain their EU membership which needs only to be slightly re-jigged, but not fundamentally altered, to take account of England’s and Wales’ secessions.

Ultimately, if Scotland does persuade the rest of the EU round on this, and Nicola Sturgeon can negotiate a package in principle for Scotland (whether or not with Northern Ireland) being regarded as the continuing UK for EU law purposes, then she can present this package to the Scottish people to be voted on in the second Scottish Independence Referendum (the Scotland Act 1998 would have to be amended by Westminster to allow this to take place lawfully, rather than by UDI).    If she wins that referendum, Scotland gets a soft transition involving ending the British Union but maintaining the European Union, while England is left to wrestle its nationalist demons unencumbered by its northern Celtic fringe of which it knew increasingly little and cared ever less.

Interestingly Article 121(a) EEA states that

The provisions of this Agreement shall not preclude cooperation :  (a) within the framework of the Nordic cooperation to the extent that such cooperation does not impair the good functioning of this Agreement.

The Helsinki Treaty of 1962 states in its preamble that “the Governments of Denmark, Finland, Iceland, Norway and Sweden, desir[e] to promote and strengthen the close ties existing between the Nordic peoples in matters of culture, and of legal and social philosophy, and to extend the scale of co-operation between the Nordic countries; [and] desir[e] to attain uniformity of regulation throughout the Nordic countries in as many respects as possible.”  Its terms were most recently updated at 1995 and now contain the following provisions, among others, on Nordic co-operation:

Article 1

The High Contracting Parties shall endeavour to maintain and develop further co-operation between the Nordic countries in the legal, cultural, social and  economic fields, as well as in those of transport and communications and environmental protection.  The High Contracting Parties should hold joint consultations on matters of common interest which are dealt with by European and other international organisations and conferences.

Legal Co-operation

Article 2

In the drafting of laws and regulations in any of the Nordic countries, citizens of all the other Nordic countries shall be treated equally with the citizens of the aforementioned country. This shall apply within all those areas falling within the jurisdiction of the Treaty of Co-operation.

Exceptions to the first paragraph may, however, be made if a requirement of citizenship is constitutionally stipulated, or is necessary because of other international obligations or is otherwise deemed necessary for particular reasons.

Article 3

The High Contracting Parties shall endeavour to facilitate the acquisition by citizens of one Nordic country of citizenship in another Nordic country.

Article 4

The High Contracting Parties shall continue their co-operation in the field of law with the aim of attaining the greatest possible uniformity in the field of private law.

Article 5

The High Contracting Parties should seek to establish uniform rules relating to criminal offences and the penalties for such offences.

With regard to criminal offences committed in one of the Nordic countries, it shall, as far as circumstances allow, be possible to investigate and prosecute the offence in another Nordic country.

Article 6

The High Contracting Parties shall seek to achieve a co-ordination of legislation in such areas, other than the aforementioned, as are considered appropriate.

Article 7

Each High Contracting Party should endeavour to ensure the implementation of regulations to allow decisions by a court of law or other public authority in another Nordic country to be executed also in the territory of the said Party.

If England and Wales were to join the EEA but Scotland (and possibly also Northern Ireland) were to remain within the EU, the Nordic co-operation agreement could also provide a useful template for a co-operation agreement to determine future relations between the now independent countries of the former British Isles (or the Anglo-Celtic Archipelago (ACA), as it might usefully henceforth be termed given the need for Ireland’s full participation within it).  On this model, the analogue to Norway within the ACA is England and Wales; Northern Ireland may be seen to be a parallel Iceland; Scotland would map on to Sweden, and the Republic of Ireland to Finland.

This then becomes a positive story from an EU perspective, showing that the Brexit vote result was not because there are fundamental problems with the EU, but because there are fundamental problems with England which may be summed up as “England has a problem with London, and London a problem with England”.   But the Brexit referendum results are respected, with England and Wales joining the EEA and Scotland and Northern Ireland staying within the EU.

Ultimately it could well be in England’s interest to have Scotland remain in the EU to argue by proxy its case and protect our common island interests from within the EU.    The fundamental change in relationship between Scotland and England – which might also  involve Scotland gaining a veto on any future free trade/investment treaties (“mixed agreements”) concluded between the EU and non-EU countries  such as the prospective new independent state of England and Wales- might be good for us all.

Conrad Russell once observed that the fundamental problem with the Treaty of Union was that England would brook no equal and Scotland no superior.   If Scotland stays in the EU then, like, Ireland it might begin to grow up and de-infantilise and lose its readiness to play the exploited victim.  And England will at last, guilt free, get to be England. The English will truly get their country back, whatever that might turn out to be.

The Quest for EU Reform after Brexit: Changes to the Role and Doctrines of the European Court of Justice

juropean-justiceProf. Peter Lindseth

“What if…?” These kinds of questions may now seem pointless in the aftermath of the victory of Leave in the EU Referendum. Instead we hear ‘What’s done is done’, ‘Leave means Leave’, ‘out is out’, etc., etc., etc.

But one question has always nagged at me ever since David Cameron brought his renegotiation deal back to the UK in February: What if it included a serious commitment to alter the role and doctrines of the European Court of Justice? Would that have tipped the balance toward the Remain side? Would we have been talking instead about a 52-48 victory for Remain? Would serious ECJ reform, both institutionally and doctrinally, have been enough to peel off the likes of Boris Johnson from the Leave camp, harnessing his energies for Remain and reform?

We will never know. But the question is still of interest, if for no other reason than the remaining Member States must now seriously consider a range of EU reforms in order to prevent further contagion of the Brexit virus. As former German Constitutional Court Judge Gertrude Lübbe-Wolff said in an interview on Verfassungsblog, ‘the shock over what has happened, and the fear of further disintegration, might produce an awakening effect. So I try to remain optimistic’. This post is in that spirit.

Continue reading

Post-Referendum Reaction – The UK Votes to Leave

Dr Iyiola Solanke

I find it hard to find anything positive to say. For me, the reason for the referendum was absurd – it is already clear that it came into being because of an internal division between members of the Conservative Party. Also, the level of the debate is embarrassing – over the last few weeks I have often wondered if I am in a national playground rather than engaged in a discussion on the future of the United Kingdom.

We voted to leave. Brexit can be seen as the consequence of decades of our leaders first, ignoring the desires of the British public and second, the deliberate miseducation of the British public.

The British public have been treated like children by political leaders for decades. The popular voice has recently been raised and ignored on a range of issues from the decision to go to war in Iraq to fees for university education. This is the backdrop to the rejection of expertise across the political spectrum – why listen to ‘them’ if they do not listen to us? The referendum is a chance to force leaders of all political stripes to listen and the chance to make a difference – even if it is a difference that will be to long term disadvantage. The temptation to do the opposite of what the ‘experts’ who called the referendum want is understandably seductive. Citizens can finally ‘take control’ not only from Brussels but also from Westminster – even if so doing will be, as the saying goes, cutting off your own nose to spite your face.

Then there is the shameful failure to educate the public on the vagaries (and yes, there are many) of the EU. This task has been left to daily newspapers yet none have taken it seriously. Worse still, one newspaper (that shall remain nameless) has done its best to mislead by regularly confusing the European Union with the Council of Europe, and the Court of Justice in Luxembourg with the European Court of Human Rights in Strasbourg.  Thus the referendum debate has sown as much confusion as clarification on the EU, making voters giddy with (dis-) information overload and inducing a decision to leave simply to be rid of the source of the headache, even if it is also the source of valuable public goods from reduced mobile roaming rates to essential protections at work.

So I for one am not surprised to wake up on June 24th to discover a majority voted to leave the EU. Those who voted to do so might be surprised, however, at some of the things that will remain the same. I list five below:

  1. The UK will still be obliged to respect the rights set out in the European Convention on Human Rights (ECHR) and comply with the rulings of the European Court of Human Rights in Strasbourg, as the Convention and the Court belong to the Council of Europe, an international organisation created in 1941 which pre-dates the EEC/ EU and the Court of Justice of the European Union (CJEU) in Luxembourg.
  2. Migrant workers, asylum seekers and refugees from former colonised and war-torn countries will still seek to re-locate to the UK by lawful or unlawful means. If France no longer feels obliged to co-operate with UK border controls as it has been doing, more desperate people may drown in the Channel. The level of immigration may therefore drop slightly and the number of deaths may increase significantly.
  3. British citizens and businesses will still experience the disappearance of jobs in the face of globalisation and the technological revolution. The more we bank, buy goods and holidays online, send electronic cards, use our Kindles and iPads, the faster the demise of our high streets and rural economies. Those who thus far have been unable to reap the benefits of membership of EU, one of the richest polities in the world, will continue to find it hard to do so after June 23rd.
  4. Home students will continue to pay high fees to study at UK Universities as these are set in Westminster not Brussels. International students enrolled to study in the UK will also still stay pay higher fees than home students for the same reason. International students may even face a fee increase if students stop coming from the EU and institutions seek to recoup the income lost by this.
  5. The British summer will still bring more rain than sun.

The world needs to note that 48% of the UK voted to remain so this is by no means a landslide victory for Brexit. David Cameron has resigned and will leave by the end of September. BMEs in the UK will now have to make sure our voice is heard in the re-negotiations. If I were a Brexiter, I would be planning how to explain that my vote brought the UK to political disintegration and international marginalisation.

Meanwhile, in Germany…the OMT ruling of the German Constitutional Court

BVerfGProf Peter Lindseth

This post originally appeared in virtually the same form on the europaeus blog.  Reproduced with kind permission.

With the EU referendum taking place today, it will be easy to overlook the OMT judgment from the German Federal Constitutional Court two days ago (English press release here, full German judgment here).  The conventional wisdom is that the decision is the usual “yes, but…” effort.  There’s some element of truth in that, but it also misses some important dimensions of ruling that will no doubt occupy commentators on Germany’s legal relationship with the EU for some time.  I’m still absorbing the judgment and also awaiting an English translation.  But in the interim, I thought I’d pass on my tweets from yesterday that tried to identify several key paragraphs worthy of deeper analysis. Continue reading

Countdown to the Referendum: Remaining and reforming the EU by Rhodri Thompson QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In our final article in this series before the vote tomorrow, Rhodri Thompson QC provides his final thoughts on how this referendum campaign has developed and the future for reform of the EU if we remain. He gives a summary of ten good reasons to stay, and five bad reasons to leave the EU. To download this article, please see here.

We hope you have enjoyed this series. If you would like to get in touch with your feedback, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Brexit and the WTO Agreement by Dr Erik Lagerlof

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin, Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC, Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

In a guest post for the Matrix referendum series, Dr Erik Lagerlof asks whether the UK would be able to rely on the WTO agreement if it were to leave the EU. He argues that the UK as a joint contracting party alongside the EU and the other Member States will not continue to benefit from the WTO agreement if it decides to leave the EU. To download this article, please see here.

Dr Erik Lagerlof is a senior associate at the Swedish law firm Vinge.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Brexit and Premier League Transfers by Nicholas Randall QC

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series the articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Nick Randall QC considers the consequences of a Brexit vote on the ability of Premier League clubs to sign overseas talent. To download this article, please see here. 

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum:The Impact of Brexit on UK Security by Mark Summers QC and Angeline Welsh

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Mark Summers QC and Angeline Welsh discuss what a British exit from the EU would mean for the internal and external security of the UK. Their analysis considers the effectiveness of EU defence policy and intelligence-sharing arrangements, and highlights the problems for continued police and criminal co-operation that would flow from leaving the EU. This article is available to download here.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

Countdown to the Referendum: Scotland and Brexit by Aidan O’Neill QC (Scot)

‘Countdown to the Referendum’ is a series of free downloadable articles by Matrix that will explore a number of legal topics surrounding the UK referendum on 23 June 2016. In this series articles have covered a number of topics which are all available here. Authors include Nick Armstrong, Claire Darwin,Sir Paul Jenkins QC (Hon), Gavin Millar QC, Aidan O’Neill QC, Nick Randall QC, Mark Summers QC,Rhodri Thompson QC, Professor Takis Tridimas and Angeline Welsh.

This week, Aidan O’Neill QC (Scot) considers the wisdom and effectiveness of referendums being used to decide on complex constitutional questions. He considers the impact on the UK, and in particular on Scotland’s relationship with England and vice versa, if Scotland votes to remain in the EU, but England decides to leave. This article can be downloaded here.

We hope you enjoy this series. If you would like to get in touch with your feedback or to add someone to the mailing list, please email rsvp@matrixlaw.co.uk.

The UK Referendum is a bad idea; voting to leave would make it worse

Erik Jones is Professor of European Studies and International Political Economy and Director of European and Eurasian Studies at the Johns Hopkins University School of Advanced International Studies (SAIS, www.sais-jhu.edu), and Senior Research Fellow at Nuffield College, Oxford.

This is an edited version of an article originally published on his personal website (www.erikjones.net), and is republished here with kind permission.

Synopsis

  • Argues that the Vote Leave campaign’s arguments based around boosting British “sovereignty” are seriously mistaken, and that the use of referendums actually usurps parliamentary sovereignty (in that it will effectively bind future parliaments).
  • Claims that the EU does not constrain British sovereignty, rather that British institutions exercise sovereignty to work within European constraints.
  • Suggests four ways in which EU cooperation has made UK Government action more effective: (1) the UK Government has considerable input into the shape and application of EU law, purported alternatives suggested by Leave campaigners to “EU laws” often just reflect domestic political disagreement and attempts to unpick Government decisions; (2) most market regulations are the result of competition/adoption of best practice across jurisdictions, including the EU – this wouldn’t change following Brexit, simply government action to promote British interests would likely be less effective; (3) any good British regulatory innovation is likely to be expensive for British companies unless the Government can find some way to win allies for its wider adoption; and (4) the best situation from a regulatory perspective is to have a large market for innovation and competition in regulation – policy-makers want the best regulations given current practice and they want to adapt to the best regulations that emerge in the future.

Two bad ideas

The EU referendum on 23 June is based on (at least) two bad ideas. The first is that the popular legitimacy of a referendum can restore the sovereignty of Parliament. The Vote Leave campaign believes they can take power from Brussels and give it back to Westminster. That is a fantasy. Parliament will be more constrained and less effective if the UK leaves. The second bad idea is that referendums are more democratic than Acts of Parliament (which is the kind of decision that brought the UK this far in its relationship with Europe). By giving the people the chance to speak their mind on a yes-or-no (in-or-out, remain-or-leave) question, we can discover what they really want. That is not how people work. Real people prefer trial and error. Real people also like to delegate responsibility for making complicated decisions. This matters because the two bad ideas combine to make the worst of all possible worlds. If the UK votes to “Leave”, voters will discover that they have made a terrible mistake only to learn that there is no easy way to fix it.

Referendums usurp parliamentary sovereignty

Let’s start from first principles: popular referendums do not protect parliamentary sovereignty; they usurp it. When David Cameron announced his intention to hold an in-or-out referendum, he made it clear that the goal was for the British people to have their say and finish the debate. What that means in principle is that future parliaments should not revisit the matter. The people will have spoken and so Parliament’s hands are tied. The fact that the people elect MPs does not trump the voice of the people themselves. The fact that many of ‘the people’ will soon pass onto the next life and so leave this constraint on future generations who haven’t yet learned to talk doesn’t matter either. As if to underscore this point, David Cameron tried to win concessions from Europe that would be similarly permanent. Britain’s opt-out from the European goal of an “ever closer union” is “irrevocable”, for example. Future parliaments should not revisit that issue either. This whole debate has made the scope for parliamentary action narrower and not wider. Current politicians have tricked the people into usurping the sovereignty of Westminster.

The situation is not worse under Europe. It is better. Nothing that has been agreed about Europe by past UK parliaments is irrevocably binding – or meant to be so. The same is true for every other country participating in the European project. If you needed any reassurance on that point, just look at how much attention the current referendum is getting elsewhere. Other European leaders know that the British government can take the UK out of the EU. So does the United States government, as President Barack Obama made clear during his recent visit. None of these political leaders thinks it would be a good idea for Great Britain to leave Europe, but they all respect that it is within the power of the UK Government to do so. The same is not true for an American state. Those states exercise sovereignty – and some, like Texas, flirt at times with secessionist rhetoric – but they are not sovereign in the same way that the UK is as an EU ‘member’ state.

The notion of ‘membership’ is important in that respect. Short of expulsion, membership is largely a self-enforcing activity. When the British legal system enforces European rules, they do so on the basis of British legal commitments made by Westminster and not as the agents of some higher power. There is no European enforcement mechanism that can override British institutions. And if British institutions choose to ignore European legal requirements there is little that the European Union can do about it. The EU could threaten to expel Britain in order to bend the UK Government to its will, but only the Government can decide whether and how to respond to that threat. If the recent example of Poland is any illustration, then expulsion – from the room and not even from the Union – is unlikely to happen.

My point is not that national governments can and should ignore their European commitments. Rather it is that commitment to Europe is an act of self-interest rather than the result of some kind of enforcement. In that sense, the threat of expulsion is not only unlikely but also unnecessary (although some observers of democratic backsliding in some of the newer Member States are likely to disagree with me on this point). Most governments accept the judgments of the European institutions. They may not like the specific decision, but they respect that some institution has to render judgment when there is disagreement over whether there are rules in a given situation, what the rules mean, and how they should be implemented. David Cameron conceded this point explicitly in his Bloomberg speech. The European Union does not constrain British sovereignty; British institutions exercise sovereignty to work within European constraints.

EU cooperation makes UK government action more effective

This self-restraint is rational insofar as participation in European institutions makes parliamentary activity more effective. No doubt many MPs will argue that is not the case. They will also complain that some enormous percentage of British laws are drafted in Brussels and not at Westminster. And they will highlight one or two key areas where they would do things differently if freed from European constraints. There is a complicated subterfuge in this line of argument that needs to be unpacked to be considered. Let me do that in four steps.

First, the real effect of the Leave campaign would be to overturn past parliamentary decisions. Successive British parliaments have delegated rule-making authority to European institutions in which they have also demanded representation. Successive British parliaments have also participated in a series of sweeping reforms to the procedures for how those European institutions make rules. And successive British parliaments have converted European rules into national legislation. At each step along the way, opponents of Europe have had the opportunity to protest both inside and outside the Houses of Parliament. Sometimes those opponents of Europe have won concessions and sometimes they have blocked change. Participation in the euro and the Schengen area are two examples. Sometimes, however, those opponents of Europe have either failed to influence the conversation or they have had little real reason to complain. Here we might put much of the single European market. So the difference between the world we live in today and a world without Europe boils down to those policy areas where opponents of Europe wanted to do something different and yet failed to sway a majority of Parliament. Now they want to reverse those defeats.

Second, many of those decisions would have come out similarly – at least in broad terms – even without European integration. Remember, both the Schengen Area and the euro are off the table. So the focus is on the Single Market. All markets have regulations and most market regulations are the result of competition across jurisdictions. Moreover, the UK Government is involved in a large number of international organisations that share ‘best practice’ for how markets should be regulated, how different regulations interact, and how much it costs to do business across different regulatory jurisdictions. This is the information that policymakers use to ‘modernise’ the rules that define the domestic marketplace. As the world becomes increasingly interconnected through market activity, that modernisation involves increasing amounts of information gathered from the experience of other countries and filtered through international forums like the European Union. The Leave campaign is quick to admit that practice will not change if the UK were to leave the EU. That is much the same as admitting that a lot of the actions of the British parliament would start outside of London even if the EU did not exist. The question is whether those actions would have been as effective in representing the British national interest.

Third, smaller markets have to accept the rules set by larger markets if they do not want to put their firms at a competitive disadvantage. Here you might think of weights and measures. There was a time when every market town had a town hall that provided examples of the standard weights and measures that applied for lawful transactions. That kind of local idiosyncrasy was one of the first victims of market integration. Every market town also had its own ‘time’ that pivoted around the sun’s apex at noon. That kind of idiosyncrasy has disappeared as well. Of course there are some holdouts. The United States still uses a form of imperial weights and measures and North Korea recently introduced its own time zone, setting the country’s clocks back by thirty minutes. Most of the rest of the world makes do with the metric system and time zones set at hourly increments and centred on Greenwich. If you dig into the details, moreover, you will see that a lot of market regulations and voluntary industrial standards show the same pattern of convergence. Moreover, the pattern is set by the largest markets and not necessarily the cleverest regulators or standard setters (unless some clever innovation is quickly adapted by a large market). This means that any good British regulatory innovation is likely to be expensive for British firms unless the British Government can find some way to win allies for its wider adoption. It also means that a lot of British regulation is going to be determined by the relative costs of doing business.

Fourth, the best situation from a regulatory perspective is to have a large market for innovation and competition and to use that large market to build a coherent regulatory framework to achieve two complementary objectives: policymakers want to adopt the best regulations given current practice and they want to adapt to the best regulations that emerge in the future. That challenge is bet met through international cooperation because almost no regulatory jurisdiction is big enough, innovative enough, and flexible enough to do everything on its own. Moreover, this is as true for the United States as it is for the European Union. That is why governments on both sides of the Atlantic pushed for a transatlantic trade and investment partnership. They knew that this kind of regulatory cooperation would be more challenging than a standard trade agreement. The current controversy over the agreement is less of a surprise than many pretend. But policymakers also saw that some kind of transatlantic trade and investment partnership is the only way to get what you want from market regulations in an increasingly integration global economy. The Leave campaign wants to move in exactly the opposition direction. That result will be to force the British parliament into accepting rules made elsewhere without any input from the UK or to abandon the goal of national competitiveness.

The decision we face

If you add this all together, the Leave campaign will constrain the sovereignty of Westminster, it will overturn regulatory decisions that Eurosceptics already fought in Parliament and lost, it will rob Parliament of influence, and it will threaten the competitiveness of British firms. By contrast, the Remain campaign will promote British interests by placing trust in elected representatives to work with Britain’s closest allies in order to project shared values across a global market. That is the choice Britons face and yet it is not a choice they should have to make.

Instead, they should vote to remain in the EU and to give responsibility for European policy to MPs and government. Then they should vote – not just once, but every five years – to hold those politicians to account for their actions. In other words, by choosing to remain, the British people should make a clear choice for representative democracy. This way Britons can not only preserve parliamentary sovereignty but they can also make sure that Parliament remains responsive to the needs of future generations. Most importantly, they can ensure that the British people can benefit from the best market regulations that the world has to offer (rather than forcing their politicians to invent everything on their own).

The choice is simple. Leave means anachronism, idiosyncrasy, and ineffectiveness; remain means accountability, sovereignty, and progress. Once you strip out all the bad ideas at the heart of the Leave campaign, it hardly looks like a choice at all.